May 3, 2010

Should Laws Push for Organ Donation?

A New York assemblyman has introduced a bill aimed at making the state the first to presume people want to donate their organs unless they specifically say otherwise. Under current law, people give permission to donate their organs by checking a box on their driver’s licenses or filling out a donor card.

The legislation, introduced by Assemblyman Richard Brodsky, a Westchester Democrat, is in two parts: the first step would end the right of the next of kin to challenge the decisions of their dead or dying relatives to donate their organs.

In a second measure, which is far more contentious, people would have to indicate in official documents — their driver’s licenses, most commonly — that they specifically don’t want to donate organs. If the box is not checked, it is presumed the person wants to donate.

What are the ethical and practical issues involved in changing the law? Is a “presumed consent” system an effective way to increase the number of organs available, and thus save lives, or will it deter public support for donation?

Mary Ann Baily is a fellow of the Hastings Center, a bioethics research organization, and a member of the Institute of Medicine Committee on Increasing Organ Donation.

Assemblyman Brodsky’s “presumed consent” provision is a very bad idea. Even if the public accepts it, it won’t solve the problem of waiting lists for solid organs like kidneys.

The real problem is that in order to be an organ donor, a person must die the right way and in the right place.

Brodsky focuses on consent as the key problem in organ supply, and claims that it’s a common practice for families to override the clearly expressed wishes of the deceased. This is simply not true. Families usually go along with the wishes of the deceased, and when those wishes aren’t known and the family is approached in a sensitive manner, the family often concludes that the deceased would be in favor of it.

The real problem is that in order to be an organ donor, a person must die the right way and in the right place.
Related

* Organ Donation: Opportunities for Action

As death approaches, a medical team must recognize that a person’s medical condition makes donation a possibility and take steps to preserve organ function. (The classic donor is someone who is “brain dead” — breathing on a mechanical ventilator but declared dead on neurological criteria, often after trauma from an auto accident or gunshot wound.)

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After death is declared, the team must remove the organs, identify recipients, and put together recipients, organs and appropriate medical staff to do the transplantations — and do all this very quickly.

The total number of medically suitable potential donors in a year is small — certainly smaller than the number of people waiting for organs. Moreover, even if every potential donor had signed a donor card and every family respected it, the current health care system wouldn’t be able to complete the complex process of turning consent into transplants for every donor.

And what on earth leads the assemblyman to think that the public will accept presumed consent? The state can authorize the taking of a person’s body parts simply because of failure to check a box on a government form — a form that seems to be about getting a driver’s license?

Many Americans don’t trust the government or the health care system. Some already fear that signing a donor card may make physicians give up on them too soon, especially if the hospital is likely to lose money on their care. This legislation, if enacted, might only ratchet up those fears.

People who aren’t sure how they feel about donation are quite likely to check the opt-out box. In fact, some current donors — unsettled by the aggressiveness of such a policy — may also decide to opt out. Presumably both the checked and the unchecked boxes will have to be respected as a matter of law. The provision could thus lead to a smaller pool of potential organ donors rather than a larger one.

Moreover, family members are more likely to question the validity of an unchecked box than a donor card as a clear expression of a relative’s wishes, and may be very upset to have the organs taken abruptly with no input from them. The result is likely to be disruptive conflict in the clinical setting, and in the long run, a decline in public support for transplantation.

What could we do instead?

We could work harder to get actual (not presumed) consent to donation. We could improve the health care system’s ability to get the most successfully transplanted organs from each donor.

We could expand the donor pool by figuring out how to get viable organs from people who die with a wider range of medical conditions and in a wider range of settings. And finally, we could reduce the need for human organs by developing better technologies to support people with organ failure.